John Kuntze

The appellants appealed the compensation and special benefit assessments under the Drainage Act regarding a proposed municipal drain.

The Tribunal found that the compensation for insufficient outlet was inadequate because the engineer calculated the corridor length based on an arbitrary termination point rather than the actual distance to a sufficient outlet.

The Tribunal increased the compensation from $5,690 to $9,653.

The Tribunal also found that the $5,510 special benefit assessment against the appellants for additional engineering investigations was unjust, as the onus is on the upper lands to justify an insufficient outlet.

Both appeals were granted.

The applicants, property owners along Erie Shore Drive, appealed a decision of the Acting Drainage Referee regarding preliminary issues in their application for damages against the municipality for failing to maintain and repair the Burk Drainage Works.

The municipality cross-appealed the Referee's finding that section 79 of the Drainage Act is a strict liability provision.

The Divisional Court dismissed both appeals, upholding the Referee's findings that the applicants' initial notice was insufficient, that damages are limited to those occurring 45 days after proper notice is given, that historical seawalls had been lawfully replaced rather than abandoned, and that section 79 imposes strict liability without requiring proof of common law injurious affection.

The appellants appealed the final engineer's report for the proposed Frank Szeder Drain under section 48 of the Drainage Act, arguing that the project was delayed excessively and the proposed design was flawed and too costly.

The Tribunal found that while the 12-year delay was excessive, the appellants failed to provide evidence that the proposed drainage work was technically flawed or that the costs outweighed the benefits.

The Tribunal dismissed the appeal and affirmed the engineer's report, but limited the chargeable engineering costs to $108,130 to account for the excessive delay.

The respondent Municipality brought a motion to dismiss the applicants' claims for damages, arguing that such claims are not actionable under section 79 of the Drainage Act because they do not meet the common law requirements for 'injurious affection.' The Municipality asserted that the applicants had no common law tort claim (nuisance, negligence, trespass) for damages caused by natural weather phenomena on Lake Erie.

The Acting Drainage Referee dismissed the motion, finding that section 79 of the Act is intended to extend a municipality's liability to an owner whose property is affected by the condition of a drainage works, even if such claims would be denied at common law.

The Referee held that section 79 creates a strict liability statutory cause of action and declined to read into it the requirements of common law torts.

The appellants appealed the assessments in an Engineer's Report prepared under section 78 of the Drainage Act for the improvement of the Dell Drain Outlet.

The proposed work involved extending the outlet to address severe gully erosion on downstream properties.

The Tribunal found that the erosion was primarily caused by water flowing from upstream lands and that the drain currently lacked a sufficient outlet.

The Tribunal amended the Schedule of Assessment, determining that the costs should be apportioned as 26% Benefit to the adjacent downstream properties and 74% Outlet Liability to the upstream lands and roads, and assessed a Special Benefit to lands subsequently connected to the drain.

The applicants, property owners along Lake Erie, brought an application under the Drainage Act alleging the respondent municipality failed to maintain and repair drainage works infrastructure, resulting in damage to their properties.

The Acting Drainage Referee issued a case management order to address preliminary issues before requiring the municipality to respond to the applicants' extensive evidence.

The preliminary issues include whether certain historical seawalls have continuing status under the Drainage Act, whether the applicants' damages claims are limited to harm occurring after the expiration of the 45-day notice period under section 79, and whether the notice provided was sufficient.

The order sets a schedule for the exchange of supplementary affidavits, facta, and a video conference hearing to determine these preliminary matters.

Several landowners appealed the Engineer's Report for the Filsinger Municipal Drain under sections 48 and 54 of the Drainage Act.

The appellants challenged the inclusion of certain lands in the watershed, the scope and cost of the proposed drainage work, the right-of-way allowances, and the assessment calculations.

The Tribunal dismissed the section 48 appeals regarding the watershed and drainage work, finding the existing drain was in poor condition and the proposed improvements were necessary.

The Tribunal allowed one appellant's appeal in part, increasing his right-of-way allowance based on a higher land value.

The Tribunal also allowed the section 54 appeals in part, adjusting the maintenance assessments for the upstream reach of the closed drain, but otherwise upheld the engineer's assessment calculations.

Several landowners appealed the assessments and allowances in the Engineer's Report for the South Innisfil Creek Drain Improvement under the Drainage Act.

The appellants argued that their assessments were too high, that the municipality should bear more costs due to past lack of maintenance, and that the drain improvements would not benefit them until downstream culverts were replaced.

A golf course owner appealed the allowance for loss of access, arguing it should cover four bridges instead of one.

The Tribunal dismissed the assessment appeals, finding the engineer's allocations fair and reasonable.

However, the Tribunal allowed the golf course's appeal in part, increasing the allowance for one bridge from $41,600 to $137,500 based on expert evidence, while agreeing that only one bridge should be funded by the drain.

The initiating municipality applied to the Tribunal under section 58(4) of the Drainage Act to correct gross errors in an engineer's report for a municipal drain.

The proposed modifications included upgrading two culverts, adjusting a trail grade line, and relocating the working platform to the north side of the drain.

A landowner objected to the relocation of the working platform, as the municipality's drainage superintendent had already improperly directed a contractor to clear trees on his property contrary to the original approved report.

The Tribunal approved the engineering modifications as they did not adversely affect the drain's capacity.

However, the Tribunal ordered the municipality to pay the landowner $8,000 in compensation for the unauthorized removal of his tree buffer, which is not to be assessed to the drain's cost.

The appellant appealed a municipal engineer's report proposing a new drainage works under section 48 of the Drainage Act, arguing that the drain should be constructed on an alternative alignment or as a mutual agreement drain.

The appellant claimed the proposed works would negatively impact his property and proposed agricultural development.

The Tribunal dismissed the appeal, accepting the engineer's evidence that the proposed alignment was hydraulically efficient, necessary to alleviate surface ponding, and that the appellant's alternative was significantly more expensive and technically inferior.

The Tribunal affirmed the municipality's right to proceed via petition rather than mutual agreement.

The applicants sought damages from the Municipality for its failure to maintain and repair a municipal drain outlet, which caused severe erosion to a bluff on their property.

The uncontrolled water flow prevented the applicants from obtaining conservation authority approval for a shoreline revetment to protect their home before a policy change prohibited such structures.

The Drainage Referee found the Municipality liable under section 79 of the Drainage Act for its unreasonable four-year delay in addressing the failed outlet.

The applicants were awarded $125,945.40 for the lost opportunity to construct the revetment, calculated based on a 65% chance of obtaining the permit.

Claims for the cost of relocating the house were dismissed as economically unreasonable.

The Municipality was ordered to initiate a section 78 process to secure a sufficient outlet and to pay the damages and costs out of its general funds pursuant to section 118(2).

The plaintiffs and defendant owned adjacent properties sharing a laneway subject to a right of way.

The plaintiffs relied on a catchbasin in the laneway for drainage.

The defendant's partner poured a concrete pad over the catchbasin, rendering it inoperable and causing significant flooding to the plaintiffs' property, which prevented them from renting out apartments.

The court found that the right of way included the right to use and maintain the drainage infrastructure.

The defendant's actions constituted a substantial interference and a nuisance.

The court ordered the reinstatement of the catchbasin, enjoined the defendant from blocking the laneway, and awarded the plaintiffs $100,000 in damages for lost rental income and repair costs.

The appellants appealed the Engineer's Report and the decision of the Court of Revision regarding the St. Agatha Municipal Drain 2015 under the Drainage Act.

The Tribunal found that the benefits of the proposed drainage works were commensurate with the estimated costs and that the project should proceed.

However, the Tribunal ordered modifications to the proposed works, substituting the Haid Branch Alternative, and adjusted the assessments for specific properties, including applying a reduction factor to pond areas.

The appeals were granted in part.

The appellants appealed the Engineer's Report for a new municipal drain, challenging the lack of alternative routes, the right of way allowances, and the benefit assessments to their property.

The Tribunal found that no feasible alternative routes existed due to topography and upheld the right of way allowances as fair and reasonable.

However, the Tribunal concluded that the proposed drain provided no agricultural or developmental benefit to the appellants' lands.

Consequently, the Tribunal reduced the section 22 benefit assessment and the upstream maintenance assessment to zero, while maintaining the section 23 outlet assessment.

Three landowners appealed the engineer's report and the Court of Revision's decision regarding the proposed Ashley Drain.

Two appellants sought to alter the drain's design due to environmental concerns and a desire for extended drainage, while another sought a reduction in their benefit assessment.

The Tribunal dismissed the design alteration appeals, finding the proposed route practical and environmentally sound.

However, the Tribunal allowed one assessment appeal in part, reducing the benefit assessment to zero based on an agreed modification to the drain's profile on that property, and ordered the municipality to conduct a stormwater management study.

The Norfolk County Roads Department appealed the Engineer's report for the Decou Road Drain, arguing that the assessments for benefit and outlet liability for Branch B were disproportionately levied against the municipality.

The Engineer had assessed 100% of the remaining capital costs and future maintenance costs for Branch B against Norfolk County, while assessing other affected properties at zero dollars.

The Tribunal found that the construction of Branch B offered significant benefit to other directly affected properties and that the assessment of capital and maintenance costs solely against the municipality was inequitable.

The Tribunal ordered the report referred back to the Engineer to revise the Schedule of Assessment for Branch B to include appropriate assessments for benefit and outlet liability against all affected lands.

The appellants appealed an Engineer's Report under the Drainage Act regarding the Saxon Drain Branch No. 1.

The Engineer discovered that the appellants had installed tile drains that diverted water from outside the historical Saxon Drain watershed into the drain, overburdening its capacity.

The Engineer recommended blocking the unauthorized tiles and improving the adjacent Bateman Drain.

The appellants argued the historical watershed was incorrectly defined and their tiles did not adversely impact the drain.

The Tribunal found the appellants knowingly tiled beyond their assessed watershed, adversely impacting downstream landowners.

The Tribunal upheld the Engineer's recommendations to block the tiles and confirmed the assessments, but ordered that recommendations regarding improvements to the Bateman Drain be handled under a separate Section 78 process rather than forming part of the Saxon Drain by-law.

The Regional Municipality of Waterloo and the Waglers appealed a decision of the Court of Revision regarding assessments for the Gingerich Road Drain.

The Court of Revision had reduced the Waglers' benefit assessment and increased the Region's assessment.

The Tribunal found the Engineer's original calculations to be technically sound and compliant with the Drainage Act.

The Tribunal set aside the Court of Revision's decision and confirmed the assessments as set out in the Engineer's Report.

In a prolonged neighbour dispute involving drainage and nuisance issues, the moving parties sought further contempt remedies after the responding party repeatedly failed to comply with prior court orders requiring implementation of an engineered drainage solution or payment into court for the work.

The responding party argued that the court‑ordered design was flawed and attempted to relitigate the merits through expert opinions and collateral proceedings.

The court held that a litigant must obey a valid court order until it is set aside through proper appellate processes, regardless of personal disagreement with the underlying remedy.

Applying principles of contempt enforcement and res judicata, the court rejected attempts to revisit issues previously addressed on appeal.

A custodial sanction and compliance conditions were imposed to compel obedience to the outstanding orders.

On a summary judgment motion in long-running drainage litigation, the moving defendants sought dismissal on limitation grounds and substantial indemnity costs.

The responding plaintiffs opposed and sought related procedural relief, including amendment of pleadings to particularize nuisance and to plead discoverability and fraudulent concealment.

The court held that the record disclosed multiple genuine issues requiring a trial, including disputed facts regarding design, construction, disclosure obligations, and the interaction of potentially applicable statutory limitation regimes.

Summary judgment was dismissed, leave to further amend the amended statement of claim was granted, and the matter was directed to proceed expeditiously toward trial.